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The Adversary First Amendment: Free Expression and the Foundation of American Democracy, Martin H. Redish

Reviewed by Mark A. Graber



Grand theories of the First Amendment suffer from problems of exclusion and inclusion. The broad principles that justify excluding some human activity from constitutional protection inevitably bleed in ways that support excluding ac­tivity that virtually all people think is covered by the First Amendment. The broad principles that justify granting First Amendment protection to activities inevitably bleed in ways that support granting protection to human activities that hardly anyone thinks merit special constitutional protection. The Adversary First Amendment: Free Expression and the Foundations of American Democracy effectively highlights how many standard justifications for exclud­ing commercial advertising from constitutional protection threaten to under­mine constitutional protection for consensual core speech rights. Martin Redish less successfully demonstrates that his adversarial theory of democracy would not entail constitutional protection for a wide variety of activity that government may consensually regulate.

Redish maintains that constitutional protection for free speech should be yoked to an adversarial theory of democracy. Adversarialists perceive no com­mon good that human societies may strive for. Democrac

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